Portland Audubon Soc. v. Lujan, Civ. No. 87-1160-FR.

• Decision Date: 08 June 1992
• Docket Number: Civ. No. 87-1160-FR.
• Citation: 795 F. Supp. 1489
• Court: U.S. District Court — District of Oregon
• Parties: PORTLAND AUDUBON SOCIETY, Headwaters, the Wilderness Society, Sierra Club, Inc., Siskiyou Audubon Society, Central Oregon Audubon Society, Kalmiopsis Audubon Society, Salem Audubon Society, Umpqua Valley Audubon Society, Natural Resources Defense Council, Lane County Audubon Society, and Oregon Natural Resources Council, Plaintiffs, v. Manuel LUJAN, in his official capacity as Secretary, United States Department of Interior, Defendant, and Northwest Forest Resource Council, Huffman & Wright Logging Co., Freres Lumber Co., Inc., Lone Rock Timber Co., Inc., Scott Timber Co., Clear Lumber Manufacturing Corp., Yoncalla Timber Products, Inc., Cornett Lumber Company, Inc., Association of O & C Counties and Benton County, Douglas County Forest Products Company, Medford Corporation, Rogge Forest Products, Inc., Defendants-Intervenors.

795 F. Supp. 1489

PORTLAND AUDUBON SOCIETY, Headwaters, the Wilderness Society, Sierra Club, Inc., Siskiyou Audubon Society, Central Oregon Audubon Society, Kalmiopsis Audubon Society, Salem Audubon Society, Umpqua Valley Audubon Society, Natural Resources Defense Council, Lane County Audubon Society, and Oregon Natural Resources Council, Plaintiffs, v. Manuel LUJAN, in his official capacity as Secretary, United States Department of Interior, Defendant and Northwest Forest Resource Council, Huffman & Wright Logging Co., Freres Lumber Co., Inc., Lone Rock Timber Co., Inc., Scott Timber Co., Clear Lumber Manufacturing Corp., Yoncalla Timber Products, Inc., Cornett Lumber Company, Inc., Association of O & C Counties and Benton County, Douglas County Forest Products Company, Medford Corporation, Rogge Forest Products, Inc., Defendants-Intervenors.

Civ. No. 87-1160-FR.

United States District Court, D. Oregon.

June 8, 1992.

COPYRIGHT MATERIAL OMITTED

Victor M. Sher, Todd D. True, Sierra Club Legal Defense Fund, Inc., Seattle, Wash., for plaintiffs Portland Audubon Soc., Headwaters, The Wilderness Soc., Sierra Club, Inc., Siskiyou Audubon Soc., Cent. Oregon Audubon Soc., Kalmiopsis Audubon Soc., Salem Audubon Soc., Umpqua Valley Audubon Soc., and Natural Resources Defense Council.

Michael D. Axline, John E. Bonine, Western Environmental Law Clinic, Eugene, Or., for plaintiffs Lane County Audubon Soc. and Oregon Natural Resources Council.

Charles H. Turner, U.S. Atty., Lance A. Caldwell, Asst. U.S. Atty., Roger W. Nesbit, Special Asst. U.S. Atty., Portland, Or., for defendant.

Mark C. Rutzick, Preston Thorgrimson Shidler Gates & Ellis, Portland, Or., for defendant-intervenors Northwest Forest Resource Council, Huffman & Wright Logging Co., et al., and Douglas County Forest Products, et al.

Phillip D. Chadsey, Kevin Q. Davis, Stoel Rives Boley Jones & Grey, Portland, Or., for defendant-intervenor Ass'n of O & C Counties and Benton County.

OPINION

FRYE, District Judge:

The matters before the court are 1) the renewed motion of plaintiffs for summary judgment (# 739); and 2) the motion of defendant to vacate preliminary injunction (# 755).

FACTS

Between 1979 and 1983, the Bureau of Land Management (BLM) formulated a ten-year Timber Management Plan for each of its seven western districts in the State of Oregon. In these Timber Management Plans, the BLM has designated the commercial forest land which is under its management for one of several uses. In these Timber Management Plans, the BLM does not designate specific timber sale boundaries or require that any particular stand of timber be harvested. Rather, the BLM has decided the land use allocation and set the annual allowable harvest for each district in the Timber Management Plans.

These seven Timber Management Plans were accompanied by seven Environmental Impact Statements. The information reviewed by the BLM in each of these Environmental Impact Statements indicates that the logging of old growth forests will result in a decline in the number of northern spotted owls inhabiting BLM lands in western Oregon. None of the Timber Management Plans addresses the effect of the decline in the number of northern spotted owls inhabiting BLM lands in western Oregon on the survivability of the subspecies.

Based upon the information available to the BLM as discussed in the Timber Management Plans and in each of the Environmental Impact Statements, the seven western districts of the BLM adopted management plans which established habitat areas for the northern spotted owl (SOHA). Logging was restricted in these SOHAs. Each SOHA was intended to support one to three pairs of northern spotted owls.

After the BLM completed the Environmental Impact Statements for each of its seven western districts in the State of Oregon, a number of scientific studies and analyses concerning the habitat requirements for the northern spotted owl were released, including 1) a status review of the northern spotted owl by the United States Fish and Wildlife Service (1982); 2) a draft of a Supplemental Environmental Impact Statement prepared by the United States Forest Service in which an analysis of the habitat requirements of the northern spotted owl is made (1986); 3) a study of the northern spotted owl undertaken by a "blue ribbon" panel of scientists for the National Audubon Society (1986); 4) analyses of the population demographics and viability of the northern spotted owl prepared by Dr. Russell Lande (1985 and 1987); and 5) analyses of the northern spotted owl prepared by a team of BLM biologists (May 8, 1986, January 16, 1987, and May 8, 1987).

In response to requests by environmental groups for it to review the significance of the new scientific studies and analyses concerning the habitat requirements of the northern spotted owl, the BLM decided to prepare an Environmental Assessment to allow it to determine whether the Environmental Impact Statements it had prepared between 1979 and 1983 for the Timber Management Plans should be supplemented.

On February 3, 1987, the Environmental Assessment was completed. In the Environmental Assessment, the BLM concluded that the new scientific studies and analyses concerning the habitat requirements of the northern spotted owls were preliminary in nature, and that these studies and analyses were not such as to cause the BLM to believe that the consequences to the northern spotted owl subspecies as a result of the planned timber sales would be worse than originally predicted in the existing Environmental Impact Statements.

On April 10, 1987, the Oregon Director of the BLM issued a decision not to supplement the current Environmental Impact Statements because he concluded that the new scientific information regarding the effects on the northern spotted owl subspecies of continued logging in these habitat areas was "not significant."

On October 19, 1987, the plaintiffs, Portland Audubon Society, Headwaters, The Wilderness Society, Sierra Club, Inc., Siskiyou Audubon Society, Central Oregon Audubon Society, Kalmiopsis Audubon Society, Salem Audubon Society, Umpqua Valley Audubon Society, and Natural Resources Defense Council filed this action alleging violations by the defendant, Manual Lujan, in his official capacity as Secretary of the United States Department of Interior, of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.; the Oregon & California Lands Act (O & C Act), 43 U.S.C. § 1181a et seq.; the Federal Lands Policy and Management Act (FLPMA), 43 U.S.C. § 1701 et seq.; the Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703 et seq.; and the Administrative Procedures Act (APA), 5 U.S.C. § 553 et seq.

In their first claim for relief, the plaintiffs alleged that the decision of the Oregon Director of the BLM on April 10, 1987 not to prepare a Supplemental Environmental Impact Statement prior to the completion of the Environmental Impact Statement, which was expected at that time to be completed by the fall of 1990, violated the requirements of NEPA.

On December 21, 1987, Congress enacted Section 314 of the Department of the Interior and Related Agencies Appropriations Act, Pub.L. No. 100-446, 102 Stat. 1774, 1825 (1988), which barred certain environmental challenges to timber sales.

On November 17, 1988, the United States District Court for the Western District of Washington held that the United States Forest Service had acted in an arbitrary and capricious manner and contrary to law in failing to review and make an express finding on the issue of whether the northern spotted owl was a threatened subspecies. Northern Spotted Owl v. Hodel, 716 F.Supp. 479 (W.D.Wash.1988).

On May 18, 1989, this court filed an opinion, in which it concluded:

The Environmental Impact Statements prepared between 1979 and 1983 do not address the issues of adequate population size or the effects of habitat fragmentation upon the long-range survival of the spotted owl species. Neither does the Spotted Owl Environmental Assessment prepared in 1987. This is a significant omission from the Spotted Owl Environmental Assessment in light of the new information available at the time it was prepared.

Since the Spotted Owl Environmental Assessment does not address the critical issues of adequate population size and the effects of habitat fragmentation upon the long-range survival of the spotted owl, the court concludes that the decision of the BLM not to supplement the Environmental Impact Statements prepared between 1979 and 1983 was arbitrary and capricious in light of the new, significant, and probably accurate information that the planned logging of spotted owl habitat raises uncertainty about the ability of the spotted owl to survive as a species.

Portland Audubon Soc'y v. Lujan, 712 F.Supp. 1456, 1485 (D.Or.1989). This court concluded, however, that Section 314, as initially enacted on December 21, 1987, and reenacted without change on September 27, 1988, barred the NEPA claim of plaintiffs, and therefore the court did not order the BLM to comply with the requirements of NEPA. Id. at 1488-89.

On June 23, 1989, the United States Fish and Wildlife Service proposed listing the northern spotted owl as a threatened species under the Endangered Species Act, 16 U.S.C. § 1531 et seq. See 54 Fed.Reg. 26666.

On September 6, 1989, the United States Court of Appeals for the Ninth Circuit issued a mandate affirming the conclusion of this court that Section 314 barred the NEPA claim of plaintiffs. Portland Audubon Soc'y v. Lujan, 884 F.2d 1233 (9th Cir.1989), cert. denied, 494 U.S. 1026, 110 S.Ct. 1470, 108 L.Ed.2d 608 (1990). The Court of Appeals stated in its opinion that "the district court's finding that plaintiffs' NEPA claim is based on `new information' is not contested in this appeal. Instead, the argument is focused on whether plaintiffs challenge the plans or `particular activities to be carried out under the existing plans.'" Id. at 1237....